Gluck v Hirsch, 2018 NY Slip Op 05828 [2d Dept 2018]
After oral argument, the court declined to sign the proposed order to show cause, with a handwritten notation that the Hirsches failed to demonstrate a meritorious defense to the action and that the Hirsches failed to submit proof of misconduct by the plaintiff's attorney.
By decision and order on motion dated December 22, 2015, this Court granted the Hirsches leave to appeal from the Supreme Court's order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject premises pending the hearing and determination of the appeal (see Gluck v Hirsch, 2015 NY Slip Op 94403[U]).
"The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein" (CPLR 2214[d]). Whether the circumstances constitute a "proper case" for the use of an order to show cause instead of a notice of motion is a matter within the discretion of the court to which the proposed order is presented (see Siegel, NY Prac § 248 [5th ed, 2011]). Here, under the particular circumstances of this case, this was a proper case for the use of an order to show cause, and the Supreme Court improvidently exercised its discretion in declining to sign the proposed order to show cause (see Matter of Georghakis v Matarazzo, 123 AD3d 711, 711).
Accordingly, we remit the matter to the Supreme Court, Kings County, to set a return date for the Hirsches' order to show cause.
As JT points out: "[B]ecause the Court ruled on the merits of the OSC without any responsive papers, the declined OSC became an order on motion not on notice, requiring leave." Though, even with responsive papers, I'm not sure it would be a motion on notice. I'm pretty sure I've seen something like that before. If i can find it, ill post it.